Without even bothering to contact the Measure backers or attorney for input.
Clackamas County releases memo outlining possible legal options for anti-light rail initiative on September ballot
Published: Tuesday, June 05, 2012, 12:42 PM Updated: Tuesday, June 05, 2012, 1:14 PM
OREGON CITY — Clackamas County commissioners this morning released a memo outlining a number of legal options the county could pursue regarding the anti-light rail initiative measure on the Sept. 18 ballot, including challenging the measure prior to the special election or asking the measure be declared unconstitutional if passed.
The initiative, if approved, would require Clackamas County voter approval before the county pays $25 million to TriMet for the $1.5 billion Portland-Milwaukie light rail project. It would also require countywide voter approval before officials can spend money to finance, design, construct or operate any rail lines in the county.
County and TriMet officials argue the initiative, if approved, would only apply to future projects and does not affect the county’s legally binding $25 million contract for Portland-Milwaukie light rail, an agreement that was signed in February 2010.
One option would be to challenge Measure 3-401 prior to the election, according to the June 4 legal memo written by County Counsel Stephen Madkour and Assistant County Counsel Alexander Gordon. The initiative process is intended for legislative acts, not administrative acts concerning the daily administration of municipal affairs, the pair write.
“The Ballot Measure goes beyond mere legislation and impermissibly intrudes into the general administrative and executive functions of County governance,” according to the memo.
The Oregonian’s continuing coverage of the planning and construction of TriMet’s Portland-Milwaukie light rail and the orange line bridge.
If the measure passes, it could still be challenged as an unlawful impairment of a contract. Both the U.S. and Oregon constitutions prohibit governments from passing laws that allow them to escape previously agreed upon contractual obligations, the memo says. Such a challenge would likely be initiated by TriMet as the aggrieved party. If that argument succeeds, it would result in the measure being declared unconstitutional, according to the memo.
County commissioners are scheduled to discuss their options at a 10 a.m. work session tomorrow.
Even if the measure passes, the county would still need to pay TriMet because the wording of the initiative states it would become effective upon passage, meaning it would only apply to prospective projects, not retroactively to previously approved contracts, the memo says.
No “cancellation fee” exists in the county’s agreement with TriMet, the memo says. If the county fails to pay the $25 million, it “would be a material breach” of the agreement. “TriMet could sue the County for money damages,” the memo says.
The legal memo also supports concerns voiced by commissioners that the measure is too broad and would likely hamper public safety and maintenance and affect other rail lines in the county, such as the MAX Green Line, Amtrak and Westside Express Service commuter rail.
“Arguably, these limitations could range from restricting CCOM (dispatchers) from taking a call concerning an Amtrak rail incident, to dispatching emergency responders to a situation on the Green Line, to striping a rail crossing on WES, to the Sheriff’s Office responding to a motor vehicle accident at a rail crossing,” the memo says. “Were the measure to pass, these situations would prove problematic.”
Federal and local transit officials signed off May 22 on the $1.5 billion funding package. Clackamas County’s contract with TriMet requires it pay the money by Sept. 3 or pay 5 percent interest to extend the deadline by a year. The Clackamas County Budget Committee last week approved a spending plan for the next fiscal year that includes a $250,000 “placeholder” for the Portland-Milwaukie light rail project.
— Yuxing Zheng